In yesterday’s post, I exhibited one of my greatest weaknesses. Because I would never deliberately hurt anyone, I usually assume the majority of people feel the same way. The results of my false assumptions could fill a book longer than War and Peace.
The current economic crisis should have been a wake up call for me. Instead, my frustrations with the complexities of caring for my parents overruled my common sense. Please forgive me, read to the end, and contact me with your own stories about dealing with these issues.
Wendy H. Sheinberg, a Certified Elder Law Attorney (CELA) in Garden City, New York, was kind enough to send an email that addressed specific points in my post. About Powers of Attorney, Ms. Sheinberg stated:
Your recent post misstated several facts and cast a scary shadow on laws that, for the most part, protect people. The state does not require the individual to execute these documents. The state has set up a structure that allows for the delegation of authority from the principal to the agent. This always existed as principal agency law and then became more specialized to allow particular delegations of very specific powers in a set way to insure a level of conformity which would then facilitate the use of these designations.
After rethinking my position on conservatorships, I was glad to read Ms. Sheinberg’s explanation of why limiting them won’t work:
The requirement of a guardian/conservator in the absence of such delegation is not found in an “elder law” but in the constitution, which is the very first law this country had. The constitution provides us with the right to be self determining and to address our own property. Such rights may not be infringed upon by anyone absent due process. Due process is a key component of any guardianship/ conservatorship as it limits personal liberties, including the restraining of property rights. These laws must exist. The inability to convey property or make medical decisions has always required capacity. Without capacity one cannot enter contracts, etc. The laws around the finding of a lack of capacity must follow constitutional guidelines, without which all of our freedoms would be at risk. This would result in allowing caregivers to determine on their own when they should be in charge and would infringe on the rights of the senior, without any due process and no oversight. I wonder what would be next on the firing range of constitutional infringement.
Though Ms. Sheinberg doesn’t explain how letting a home deteriorate from lack of use can help anyone, she cites a law that explains why my former neighbor’s home is vacant:
There is no seizure. Some states place a lien on the property to ensure a payback on death. The SCOTUS decision in Ahlbourne upheld the prohibition on the enforcement of liens until death. The lien is only in the amount of the service provided.
I stand behind my information on the requirement that a caregiver in my state live in a home two years before securing the right to remain there after the owner moves into a nursing home. This came straight from two CELAs.
Ms. Sheinberg explains another law that addresses the five year look back period:
DRA 2005, enacted as of 2/8/06, imposed a 5 year look back, which is fully enforced by 2009. This is a federal law. The states have the right to promulgate their own enforcement criteria, for DRA, but it is federal, and is technically required of all states accepting federal funds for Medicaid. Some states have been slower in their enforcement of the application of the new penalty rules, but there has been no hub bub about holding back on the five year look back. It is important for your readers to know that the five year look back and the new transfer rules only apply to transfers made after 2/6/08.
This still does not address the issue of paying for legal assistance to address these issues. Though there is no recognized “hub bub,” current economic realities prohibit many middle income families from getting help because the income guidelines are unrealistic.
This information may come too late to help some readers. Contact a Certified Elder Law Attorney in your state for personalized guidance. Visit the National Elder Law Foundation website to find a CELA near you.
Wendy H. Sheinberg, CELA, is a Partner in the law firm of Davidow, Davidow, Siegel & Stern, LLP, a law firm that concentrates in Special Needs, Elder Law, Estate Planning, Guardianships, Estate Administration Trusts, and Wills. She is one of fewer than 400 Certified Elder Law Attorneys. She has been certified by the National Elder Law Foundation as a Certified Elder Law Attorney and is one of fewer than 70 Fellows of the National Academy of Elder Law Attorneys and a member of its Board of Directors.
You can visit her firm’s website, email her at wsheinberg@davidowlaw.com, or call 516-393-0222.
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Jacqueline Laurette Jones is author of Unmasking a Diagnosis: How to get Help for a Confusing Chronic Illness Without Filing for Bankruptcy.
